TARIQ BASHIR and 5 others vs THE STATE

' MUHAMMAD MUNIR KHAN, J.---This petition for leave to appeal is directed against the order, dated 5-8-1994 of the High Court of Sindh at Karachi whereby post-arrest bail granted to the petitioners Tariq Bashir and Shahzad Bashir on 22-12-1993 and Kamran Bashir, Suhail Zafar, Muhammad Moiz and Zafar Iqbal on 9-3-1994, in case F.I.R. No,146/1993, dated 7-4-1993, Police Station Ferozeabad, by Mr. Justice Syed Khurshid Hyder Rizvi (as he then was) was cancelled by Mr. Justice Mamoon Kazi of the same High Court.

2. Facts of the case, briefly stated, are that on 7-4-1993, at 1-00 p.m. Five unknown persons, duly armed, committed dacoity in the house of Mst. Robina Amjad and took away ornaments, jewellery, cash and prize bonds. On the report of Mst. Robina Amjad, F.I.R. Under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 was registered at Police Station Ferozeabad on the same day at 4-15 p.m. The petitioners were arrested on 2-11-1993 and the stolen property was allegedly recovered from them. They were released on bail by the High Court which was subsequently cancelled vide impugned order. Hence this petition for leave to appeal.

3. Learned counsel for the petitioners contended that post-arrest bail granted to the petitioners by one learned Judge of the High Court has been cancelled by another learned Judge of the same High Court without legal and factual justification.

4. Learned Additional Advocate-General has half-heartedly supported the order of cancellation of bail on the ground of seriousness of the charge.

5. Being fully'-conscious of the seriousness of the charge against the petitioners we have examined the impugned order of the cancellation of bail with utmost care on our part.

6. Section 496 and subsections (1) and (2) of section 497 of the Criminal Procedure Code read as hereunder:- "496. In what cases bail to be taken.---When any person other than a person accused of a non- bailable offence is arrested or detained without warrant by an officer-in-charge of a police station, or appears or is brought before a Court, and is prepared at any time while in the custody of such officer or at any stage of the proceedings before such Court to give bail, such person shall be released on bail: Provided that such officer of Court, if he or it thinks fit, may instead of taking bail, from such person, discharge him on his executing a bond without sureties for his appearance as hereinafter provided: ' Provided further, that nothing in this section shall be deemed to affect the provisions of section 107, subsection (4), or section 117, subsection (3).

497. When bail may be taken in case of non-bailable offence.---(1) When only person accused of any non-bailable offence is arrested or detained without warrant by an officer-in-charge of a police station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years: ' Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail: ' Provided further that a person accused of an offence as aforesaid shall not be released on bail unless the prosecution has been given notice to show cause why he should not be so released.

(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry, into his guilt, the accused shall, pending such inquiry, be released on bail, or at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided."

It is crystal clear that in bailable offences the grant of bail is a right and not favour, whereas in non- bailable offences the grant of bail is not a right but concession/grace. Section 497, Cr.P.C. Divided non-bailable offences into two categories i,e, (i) offences punishable with death, imprisonment of life or imprisonment for ten years; and (ii) offences punishable with imprisonment for less than ten years. The principle to be deduced from this provision of law is that in non-bailable offences falling in the second category (punishable with imprisonment for less than ten years) the grant of bail is a rule and refusal an exception. So the bail will be declined only in extraordinary and exceptional cases, for example--

(a) where there is likelihood of abscondence of the accused;

(b) where there is apprehension of the accused tampering with the prosecution evidence;

(c) where there is danger of the offence being repeated if the accused is released on bail; and

(d) where the accused is a previous convict.

' We know that many under-trial accused of bailable offences and preventive offences i,e, offences under sections 107, 109 and 110, Cr.P.C. Have been sent to/confined in jails for want of surety bonds although they, at the discretion of the Court, could be released on execution by them of bond (personal bond) without surety for their appearance before the Court. We also find that even in petty cases the Courts/subordinate Courts have remanded the accused to jail on their failure to produce sureties with the result that hundreds of under-trial accused who could have easily been released on personal bond are rotting in the jail for a long time. It is, therefore, directed that in bailable cases while remanding the accused to jail on his failure to furnish surety/bail bonds, the trial Court shall consider the propriety of his release on execution of personal bond. Not only the first order of judicial remand but also each subsequent order must show that the Court had really considered the propriety of his release on personal bond. Instead of being severe to an under-trial accused carrying presumption of innocence with them, it is better that the Court should be lenient in the matter of bail, food and medical facilities. It is to be noted that under section 32 of the Prisons Act, an under-trial prisoner is entitled to have clothes and food privately. These facilities should liberally be provided to them till they are convicted. The jails in our country are overcrowded. The detention of under-trial prisoners, food and medical facilities and their transportation from jail to the Court heavily burden public exchequer. It would be in consonance with the law of bail and in the fitness of things that accused in bailable offences, petty offences and offences punishable with imprisonment less than ten years should not unnecessarily be detained in the jail.

7. As regards the first category of offences (punishable with death, or imprisonment for life, or with ten years' imprisonment) the provisions of section 497(1) are not punitive in nature. There is no concept of punishment before judgment in the criminal law of the land. The question of grant/refusal of bail is to be determined judiciously having regard to the facts and circumstances of each case. Where the prosecution satisfies the Court, that there are reasonable grounds to believe that the accused has committed the crime falling in the first category the Court must refuse bail. On the other hand where the accused satisfies the Court that there are not reasonable grounds to believe that he is guilty of such offence, then the Court must release him on bail. For arriving at the conclusion as to whether or not there are reasonable grounds to believe that the accused is guilty of offence punishable with death, imprisonment for life or with ten years' imprisonment, the Court will not conduct a preliminary trial/inquiry but will only make tentative assessm ent, i,e, will look at the material collected by the police for and against the accused and be prima facie satisfied that some tangible evidence can be offered which, if left unrebutted, may lead to the inference of guilt. Deeper appreciation of the evidence and circumstances appearing in the case is neither desirable nor permissible at bail stage. So, the Court will not minutely examine the merits of the case or plea of defence at that stage.

8. The case-law on the subject of bail is very much clear that the bail order must be carefully balanced and weighed in scale of justice and requirement of relevant law. Reasonable grounds mean grounds which appeal to a reasonable and prudent man.

9. The considerations for the grant of bail and for cancellation of the same are altogether different.

Once the bail is granted by a Court of competent jurisdiction, then strong and exceptional grounds would be required for cancellation thereof. To deprive a person on post-arrest bail of the liberty is a most serious step to be taken. There is no legal compulsion to cancel the bail of the accused who allegedly has committed crime punishable with death, imprisonment for life or imprisonment for ten years. Question of benefit of reasonable doubt is necessary to be determined not only while deciding the question of guilt of an accused but also while considering the question of bail because there is a wide difference between the jail life and a free life. So, benefit of reasonable doubt about occurrence itself, identity of the accused, part allegedly played by him in the occurrence, his presence on the spot and on the question of his vicarious liability, would go to him even at bail stage. It is by now judiciously recognized that there is a tendency in our country to involve innocent persons with the guilty. Once an innocent person is falsely involved in a serious case then he has to remain in jail for considerable time. Normally it takes two years to conclude the trial. When a person is detained in the jail, all his dependents also suffer hardships. The ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of interim bail granted to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case, albeit his acquittal in the long run. So, whenever reasonable doubt arises with regard to the participation of an accused person in the crime, he should not be deprived of the benefit of bail. The bail can neither be withheld nor cancelled as punishment.

10. In the instant case, one learned Judge of the High Court on examination of the F.I.R., statements recorded under section 161, Cr.P.C. And the material collected during investigation was of the opinion that there were not reasonable grounds to believe that the petitioners are guilty of the offences alleged against them, whereas on the same material on record, another learned Judge of the same High Court has come to a totally different conclusion that there are reasonable grounds to believe that the petitioners have committed the alleged crime. We feel that the contrary conclusions arrived at by the two learned Judges of the High Court have made the existence of reasonable grounds to connect the accused with the crime doubtful, entitling the petitioners to benefit of doubt at this stage. In any case, the contrary views/opinions of the two learned Judges of the High Court about the guilt of the petitioners have made out a case of further inquiry within the meaning of subsection (2) of section 497, Cr.P.C.

11. Even otherwise, the grounds on which the bail was allowed by the learned Judge of the High Court are supportable from the facts and circumstances of the case. The names of the petitioners/ accused are not mentioned although two of them namely, Tariq Bashir and Shahzad Bashir are the first cousins of the complainant. In the F.I.R., number of the accused given by the complainant was five. During investigation it was exaggerated from five to nine. Three persons namely, Jano Bhatti, Capt. Nadeem, and Nadeem son of Jano who were previously known to the complainant were also implicated. The details of the jewellery, ornaments, number of prize bonds and the amount of cash are not mentioned in the F.I.R. In this view of the matter, it cannot be said that on the tentative assessm ent of the evidence the learned Judge of the High Court was not justified in granting bail to the petitioners.

12. Accordingly, the petition is converted into an appeal and allowed, subject to the petitioners furnishing fresh bail bonds in the sum of Rs,25,000 each, with one surety each in the like amount to the satisfaction of the trial Court. The challan has already been submitted in the Court. The trial Court is directed to decide the case within six months. The observations made by the High Court in the impugned orders and by this Court in this judgment are without prejudice to the case of either party at trial.

' By our short order we had converted the petition into an appeal and allowed the same. These are the reasons therefor.